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2017 DIGILAW 1212 (ORI)

Mohammed Shaffuddin v. Khaja Fakiruddin

2017-10-27

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. Plaintiff is the appellant against a confirming judgment in a suit for specific performance of contract. 2. Case of the plaintiff is that on 9.9.1981 defendant no.1 entered into an agreement with him to sell the suit house at Rs.75,000/-and received an amount of Rs.1001/-. Later he came to know that defendant no.1 sold the suit house to defendant no.4 for a consideration of Rs.24,000/-on 22.10.1981. With this factual scenario, he instituted the suit for decree of specific performance of contract. 3. Defendant no.1 filed a written statement contending, inter alia, that there was no agreement to sell between him and the plaintiff. Defendant no.4-firm filed a written statement stating therein that it purchased the suit house from defendant no.1 for a consideration of Rs.24,000/-and thereafter possession was delivered to it on 22.10.1981. 4. On the inter se pleadings of the parties, learned trial court has framed nine issues. The parties led evidence, oral and documentary, in support of their cases. Learned trial court came to hold that defendant no.1 had not entered into an agreement with the plaintiff on 9.9.1981 to sell the suit house at Rs.75,000/-and received Rs.1001/-as earnest money. The plaintiff had not averred in the plaint about his readiness. The plaintiff was not ready and willing to perform part of his contract. Held so, it dismissed the suit. The plaintiff unsuccessfully challenged the judgment and decree before the learned District Judge, Berhampur, which was subsequently transferred to the court of learned 1st Addl. District Judge, Berhampur and renumbered as Title Appeal No.17/2 of 1994/1992 GDC. The appeal was dismissed. 5. The second appeal was admitted on the substantial questions of law. The same are - “(i) Whether the provision of Sec. 48 of the Registration Act can be called in aid where the subsequent transferee has got the transfer with notice of prior oral agreement ? iv) in the facts and circumstances of the case, whether the court should direct return of earnest money advanced by the plaintiff ? 6. Heard Mr. P.V. Balakrishna, learned counsel for the appellant. None appeared for the respondents. 7. Learned counsel for the appellant submitted that there was an oral agreement between the defendant no.1 and the plaintiff to sell the suit house for a consideration of Rs.75,000/-. The defendant no.1 had received Rs.1001/-towards part performance of contract. 6. Heard Mr. P.V. Balakrishna, learned counsel for the appellant. None appeared for the respondents. 7. Learned counsel for the appellant submitted that there was an oral agreement between the defendant no.1 and the plaintiff to sell the suit house for a consideration of Rs.75,000/-. The defendant no.1 had received Rs.1001/-towards part performance of contract. The plaintiff was ready and willing to perform part of his contract. Defendant no.1 clandestinely sold the suit property to defendant no.4. Defendant no.4 was aware about the oral agreement between the defendant no.1 and the plaintiff. The courts below committed a manifest illegality in dismissing the suit. 8. The submission of the learned counsel for the appellant is difficult to fathom. On an analysis of the evidence on record as well as pleadings, both the courts below held that there was no agreement for sale between the defendant no.1 and the plaintiff. There is no material on record that defendant no.4 was aware of any such oral agreement to sell. Thus reliance placed on Sec. 48 of the Registration Act is totally misplaced. The substantial questions of law are answered accordingly. 9. In the result, the appeal fails and is dismissed. There shall be no order to as to costs.